Opinion
NO. 09-11-00486-CR
02-06-2013
BYRON LEON BERKLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-03-03054 CR
MEMORANDUM OPINION
A jury convicted Byron Leon Berkley of engaging in organized criminal activity, enhanced, and the trial court sentenced Berkley to forty-five years in prison. Berkley's appellate counsel filed a brief that presents counsel's professional evaluation of the record and concludes the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On September 6, 2012, we granted an extension of time for Berkley to file a pro se brief. We received no response from Berkley. We have determined that this appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record, and we agree that no arguable issues support an appeal. We find it unnecessary to order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
However, according to the judgment, the trial court assessed $4,330.97 in attorney's fees. The record does not indicate that Berkley has the financial resources to enable him to pay attorney's fees. See Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2012); see also Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Accordingly, we modify the judgment to delete the $4,330.97 in attorney's fees. We affirm the trial court's judgment as modified.
Berkley may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68.
AFFIRMED AS MODIFIED.
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STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.